On the morning of June 20, 2017, Nury Chavarria faced a heart-wrenching choice. (1) A victim of violence in her country of origin, Ms. Chavarria had fled Guatemala to the United States in 1993. (2) While she lacked an affirmative legal status that would permit her to remain in the country, Chavarria had not been an enforcement priority for Immigration and Customs Enforcement (ICE). She had no criminal record and was the mother of four U.S. citizen children, the oldest of whom suffered from cerebral palsy. (3) Since 2011, she had faithfully attended her regular check-ins with ICE. (4) After living in the country for twenty-four years, she had been told that her time had run out and that she should return to the ICE office within a month with a plane ticket. (5) Instead of turning herself in on the morning of her scheduled deportation, she went to the Iglesia de Dios Pentecostal, a small, predominantly Latinx congregation in New Haven. (6) The pastor of the church, Hector Otero, faced a choice of his own: turn Ms. Chavarria away at the door or let her in and risk retaliation from the federal government against his small church. By later that day, community members and faith leaders had begun to rally around the Iglesia de Dios Pentecostal, where Nury Chavarria was in sanctuary. (7)

The deeply personal decisions taken by Pastor Otero and Nury Chavarria took place against a complex backdrop of intersecting laws regulating immigration and protecting religious freedom. When Chavarria arrived at the church doors seeking sanctuary, did federal antiharboring laws require Pastor Otero to close the door on her--or were his actions shielded under federal protections for religious exercise? And once Ms. Chavarria was in sanctuary, were there any legal limitations on ICE's authority to come into the church to arrest and deport her? The last time these questions were litigated in federal court was during the sanctuary movement of the 1980s. Back then, the Courts of Appeals for the Fifth and Ninth Circuits held that providing sanctuary to undocumented immigrants was a felony; religion was no defense. The academic literature on sanctuary has generally accepted this conclusion. Yet the answer today may be quite different. Unbeknownst to the individuals in this story, their early morning decisions occurred at a time when religious freedom was coming to enjoy steadily increasing legal protection, thanks in a large part to the efforts of conservative Christian activists and lawyers.

This Note offers a novel analysis of how sanctuary claims would fare today under the Supreme Court's recent interpretations of the Religious Freedom Restoration Act (RFRA). I argue that under both the doctrine and values of RFRA, churches like the Iglesia de Dios Pentecostal can lawfully provide some degree of sanctuary. In addition to analyzing this doctrinal claim, this Note also examines a broader shift that has occurred in the movement for religious freedom and the associated scholarly literature. Throughout much of the twentieth century, religious exceptions to laws of general applicability tended to find support among progressives and opposition from conservatives. Yet over the past decade and a half, the political allegiances have flipped. Today, conservative groups seek to expand the scope of RFRA through cases such as Bunnell v. Hobby Lobby (8) and Zubik v. Burwell, (9) while progressives have mostly argued for more limited protection.

Yet these battle lines are far from inevitable. As they have historically, expanded religious freedom protections can serve to further goals that progressives consider important, providing meaningful safeguards for minority faiths and subordinate groups, as well as for those who assist them out of religious obligation. Perhaps counterintuitively, focusing on politically charged RFRA claims made by the left, such as sanctuary, could help to defuse partisan debates over religious freedom and produce a more stable equilibrium between the values underlying religious accommodation and society's need to enforce laws of general applicability. By forcing conservatives and progressives to confront these questions of religious freedom from the opposite perspective, reconciliation and compromise can become more attainable. What might this look like? Bipartisan consensus around the need to protect disadvantaged groups from the greater political influence of mainstream faiths was a core impetus behind RFRA's design and passage in 1993. Interpreting RFRA in light of this special solicitude for the needs of disadvantaged groups will help balance the need for accommodations with the protection of other essential values such as effective governance, LGBT rights, and access to reproductive health care.

Part I describes the history of the sanctuary movement and its current form today. Part II tracks the evolution and current state of religious freedom protections under RFRA. Part III analyzes two types of sanctuary issues under current RFRA doctrine: (1) whether sanctuary churches should receive an exception from federal laws prohibiting various forms of assistance to undocumented individuals; and (2) whether RFRA would place limits on ICE's ability to raid or surveil places of worship. Finally, Part IV examines the substantive-equality rationale and concerns about subordinate groups underlying RFRA's effects-based protections, as well as the perils of over accommodation. This Part further argues that sanctuary claims could help restore a preexisting equilibrium to religious accommodation law by interpreting the doctrine in light of the commitment to substantive-equality that produced the initial consensus around RFRA. That is, if courts were to analyze various open questions in RFRA doctrine with an eye to the particular harms that arise from the unequal treatment of disadvantaged groups, this could help to restore the law's original consensus and avoid the divisiveness produced by recent claims brought by politically influential, mainstream faith groups.

SANCTUARY MOVEMENT PAST AND PRESENT

The last time that sanctuary congregations received national attention was the mid-1980s. As deadly violence raged in El Salvador and Guatemala, faith groups in the Southwest and across the country began providing shelter to refugees and helping them travel from place to place. (10) In response, the federal government used informants to infiltrate churches, leading to the charging and conviction of sanctuary-movement members under felony antiharboring laws. (11) Nonetheless, the legal advocacy that emerged out of this sanctuary movement produced significantly stronger protections for refugees. (12) The legal legacy of the 1980s sanctuary movement is therefore a mixed one. While the religious defenses brought by sanctuary members in their criminal trials were unavailing, the movement's charity and acts of moral witness helped to reframe America's understanding of its legal obligation to refugees from Central America. And at the human level, the sanctuary movement helped provide basic shelter, transport, and care for thousands.

The Movement

The sanctuary movement of the 1980s can only be understood in the context of the brutal violence taking place in El Salvador and Guatemala--and the U.S. government's systematic failure to provide refuge to those fleeing that violence. Here, I provide an abridged account.

By 1980, El Salvador was in profound crisis. (13) In October 1979, junior officers in the military overthrew the government, promising political and land reform. (14) In response, the military high command, supported by large property owners, conducted a coup from within, consolidating power through brutal violence. (15) Far-right death squads and military forces began a campaign of terror. (16) Dissidents and activists associated with the Catholic Church and with labor unions were murdered, as were government officials and reformers within the military. (17) On March 24, 1980, the widely respected Archbishop Oscar Arnulfo Romero was murdered while performing Mass. (18) Romero had run a popular radio program, through which he delivered sermons denouncing the nation's violence and human rights abuses to listeners across the country. (19) In what would be his final homily, Archbishop Romero called upon soldiers to disobey orders to kill innocent civilians. (20) When 50,000 marchers took to the streets for Romero's funeral, they were sprayed with pesticide by crop-dusting planes before gunfire and bombs killed dozens. (21) Across the country, the violence intensified. In 1980 alone, between 16,000 and 20,000 El Salvadorans were killed in the conflict...